356 U.S.

129
78 S.Ct. 612
2 L.Ed.2d 659

MITSUGI NISHIKAWA, Petitioner,

v.
John Foster DULLES, Secretary of State.
No. 19.
Reargued Oct. 28, 1957.
Decided March 31, 1958.

Mr. A. L. Wirin, Los Angeles, Cal., for petitioner.

Mr. Oscar H. Davis, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.

In this, the third of the denationalization cases decided today, issues concerning
Section 401(c) of the Nationality Act of 1940 are presented. That statute
provides:

'A person who is a national of the United States, whether by birth or

naturalization, shall lose his nationality by:

'(c) Entering, or serving in, the armed forces of a foreign state unless expressly
authorized by the laws of the United States, if he has or acquires the nationality
of such foreign state * * *.'1

We need not in this case consider the constitutionality of Section 401(c). This
case thus differs from Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, and Trop
v. Dulles, 356 U.S. 86, 78 S.Ct. 590, where questions of the constitutionality of
Sections 401(e) and 401(g) were determined. The issues with which we are
concerned here relate solely to problems of burden of proof.

Petitioner brought this action in a District Court praying for a judgment

declaring him to be a citizen of the United States. The controversy arose from

petitioner's application to a United States Consulate in Japan for an American

passport. Instead of the passport, he received more than a year later a Certificate
of the Loss of the Nationality of the United States. Petitioner alone testified at
the trial, the Government introducing no testimony. What follows is a summary
of his testimony.
6

Petitioner was born in Artesia, California, in 1916. By reason of that fact, he

was a citizen of the United States, and because of the citizenship of his parents,
he was also considered by Japan to be a citizen of that country. Petitioner was
educated in the schools of this country and lived here until 1939. In August of
that year, having been graduated from the University of California with a
degree in engineering, he went to Japan, intending to stay between two and five
years, visiting and studying. He knew that his father had registered him in the
family register in Japan. In November of 1939 petitioner's father, who was
paying his way, died in this country and petitioner, lacking funds, went to work
for an aircraft manufacturing company in Japan for the equivalent of $15 a
month. He was unable to accumulate any savings. Pursuant to the Military
Service Law of Japan, petitioner was required about June 1940 to take a
physical examination, and on March 1, 1941, he was inducted into the Japanese
Army. The Military Service Law provided for imprisonment for evasion.
Between the time of his physical examination and his induction, petitioner did
not protest his induction or attempt to renounce his Japanese nationality, to
return to the United States or to secure the aid of United States consular
officials. He testified that he was told by a friend who worked at the American
Embassy that the American Consulate could not aid a dual national; the
Government has not contended that this was not so. He further testified that he
had heard rumors about the brutality of the Japanese secret police which made
him afraid to make any protest.

Petitioner testified that he did not know when he went to Japan that he was
likely to be drafted. He said he was not aware at that time of any threat of war
between the United States and Japan. He had left the United States just prior to
the outbreak of war in Europe and two years and four months before Pearl
Harbor. He testified that he was unable to read the Japanese language and lived
too far out in the country to subscribe to an English-language newspaper, and
therefore did not read any newspapers while in Japan.

Petitioner served as a maintenance man or mechanic in an Air Force regiment in

China, Indo-China, the Philippines and Manchuria. He testified that when war
between the United States and Japan began, he expressed the opinion to a group
of noncommissioned officers that there was no chance of Japan's winning the
war. That night he was given a thorough beating; he was beaten almost every

day for a month, and afterwards he was beaten 'a couple days a month.' He won
the nickname 'America.'
9

After hearing this testimony, the district judge announced from the bench that
'the court simply does not believe the testimony of the witness. That is all. I
simply do not believe his testimony.' He went on to express his opinion that
petitioner 'went over because as a Japanese citizen under the laws of Japan it
was necessary for him to serve his hitch in the army. * * * He went over and he
waited until they reached him on the draft, and when they did he was drafted.'
Formally, the court found as a fact on the basis of petitioner's testimony alone,
which did not include an admission to that effect, that his 'entry and service in
the Japanese Armed Forces was his free and voluntary act.' Therefore he was
held to have lost his nationality under Section 401(c) and judgment was
rendered for respondent. The Court of Appeals for the Ninth Circuit affirmed
that judgment.2 We granted certiorari. 352 U.S. 907, 77 S.Ct. 148, 1 L.Ed.2d
116.

10

Whatever divergence of view there may be as to what conduct may, consistent

with the Constitution, be said to result in loss of nationality, cf. Perez v.
Brownell, 356 U.S. 44, 78 S.Ct. 568, it is settled that no conduct results in
expatriation unless the conduct is engaged in voluntarily. Mandoli v. Acheson,
344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146.3 The Government does not contend
otherwise. Likewise, the parties are agreed that when a citizenship claimant
proves his birth in this country or acquisition of American citizenship in some
other way, the burden is upon the Government to prove an act that shows
expatriation by clear, convincing and unequivocal evidence. In Gonzales v.
Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, we held that the rule as to
burden of proof in denaturalization cases 4 applied to expatriation cases under
Section 401(j) of the Nationality Act of 1940. We now conclude that the same
rule should govern cases under all the subsections of Section 401.

11

The parties disagree as to whether the Government must also prove that the
expatriating act was voluntarily performed or whether the citizenship claimant
bears the burden of proving that his act was involuntary.5 Petitioner contends
that voluntariness is an element of the expatriating act, and as such must be
proved by the Government. The Government, on the other hand, relies upon the
ordinary rule that duress is a matter of affirmative defense and contends that the
party claiming that he acted involuntarily must overcome a presumption of
voluntariness.

12

Because the consequences of denationalization are so drastic petitioner's

contention as to burden of proof of voluntariness should be sustained. This

Court has said that in a denaturalization case, 'instituted * * * for the purpose of
depriving one of the precious right of citizenship previously conferred we
believe the facts and the law should be construed as far as is reasonably
possible in favor of the citizen.' Schneiderman v. United States, 320 U.S. 118,
122 63 S.Ct. 1333, 1335, 87 L.Ed. 1796. 6 The same principle applies to
expatriation cases, and it calls for placing upon the Government the burden of
persuading the trier of fact by clear, convincing and unequivocal evidence that
the act showing renunciation of citizenship was voluntarily performed. While
one finds in the legislative history of Section 401, and particularly Section
401(c), recognition of the concept of voluntariness,7 there is no discussion of
the problem of the burden of proof. What is clear is that the House Committee
which considered the bill rejected a proposal to enact a conclusive presumption
of voluntariness in the case of dual nationals entering or serving in the military
forces of the nation of their second nationality.8 It is altogether consonant with
this history to place upon the Government the burden of proving voluntariness.
The Court has said that 'Rights of citizenship are not to be destroyed by an
ambiguity.' Perkins v. Elg, 307 U.S. 325, 337, 59 S.Ct. 884, 891, 83 L.Ed.
1320. The reference was to an ambiguity in a treaty, but the principle there
stated demands also that evidentiary ambiguities are not to be resolved against
the citizen.
13

Finally, the Government contends that even if it has the burden of proving
voluntariness by clear, convincing and unequivocal evidence, that burden has
been met in this case. What view the District Court took of the burden of proof
does not clearly appear. The Court of Appeals seemed at one point to accept the
evidence in the District Court as sufficient even on the view of the burden of
proof as above stated.9 That conclusion is not supportable. Of course, the
citizenship claimant is subject to the rule dictated by common experience that
one ordinarily acts voluntarily. Unless voluntariness is put in issue, the
Government makes its case simply by proving the objective expatriating act.
But here petitioner showed that he was conscripted in a totalitarian country to
whose conscription law, with its penal sanctions, he was subject. This
adequately injected the issue of voluntariness and required the Government to
sustain its burden of proving voluntary conduct by clear, convincing and
unequivocal evidence.10 The Government has not sustained that burden on this
record. The fact that petitioner made no protest and did not seek aid of
American officialsefforts that, for all that appears, would have been in vain
does not satisfy the requisite standard of proof. Nor can the district judge's
disbelief of petitioner's story of his motives and fears fill the evidentiary gap in
the Government's case. The Government's only affirmative evidence was that
petitioner went to Japan at a time when he was subject to conscription.

14

On this record the Government has not established the voluntary conduct that is
the essential ingredient of expatriation. The fact that this petitioner, after being
conscripted, was ordered into active service in wartime on the side of a former
enemy of this country must not be permitted to divert our attention from the
necessity of maintaining a strict standard of proof in all expatriation cases.
When the Government contends that the basic right of citizenship has been lost,
it assumes an onerous burden of proof. Regardless of what conduct is alleged to
result in expatriation, whenever the issue of voluntariness is put in issue, the
Government must in each case prove voluntary conduct by clear, convincing
and unequivocal evidence.

15

The judgment of the Court of Appeals is reversed and the cause is remanded to
the District Court for further proceedings consistent with this opinion.

16

Reversed and remanded.

17

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins.

18

While I concur in the opinion of the Court I add the following to state what I
conceive to be the controlling constitutional principles in this and other
expatriation cases.

19

The Fourteenth Amendment declares that 'All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.' Nishikawa was born in this country
while subject to its jurisdiction; therefore American citizenship is his
constitutional birthright. See United States v. Wong Kim Ark, 169 U.S. 649, 18
S.Ct. 456, 42 L.Ed. 890. What the Constitution has conferred neither the
Congress, nor the Executive, nor the Judiciary, nor all three in concert, may
strip away. Although Congress can enact laws punishing those who shirk their
duties as citizens or those who jeopardize our relations with foreign countries it
cannot involuntarily expatriate any citizen. As the CHIEF JUSTICE and Mr.
Justice DOUGLAS explain in their dissenting opinions in Perez v. Brownell,
356 U.S. 62, 79, 78 S.Ct. 578, 586, this results not only from the provisions of
the Fourteenth Amendment but from the manner in which the Government of
the United States was formed, the fundamental political principles which
underlie its existence, and its continuing relationship to the citizenry who
erected and maintain it. Cf. Osborn v. Bank of the United States, 9 Wheat. 738,
827, 6 L.Ed. 204. In my view the notion that citizenship can be snatched away
whenever such deprivation bears some 'rational nexus' to the implementation of
a power granted Congress by the Constitution is a dangerous and frightening

proposition. By this standard a citizen could be transformed into a stateless

outcast for evading his taxes, for fraud upon the Government, for
counterfeiting its currency, for violating its voting laws and on and on ad
infinitum.
20

Of course a citizen has the right to abandon or renounce his citizenship and
Congress can enact measures to regulate and affirm such abjuration. But
whether citizenship has been voluntarily relinquished is a question to be
determined on the facts of each case after a judicial trial in full conformity with
the Bill of Rights. Although Congress may provide rules of evidence for such
trials, it cannot declare that such equivocal acts as service in a foreign army,
participation in a foreign election or desertion from our armed forces, establish
a conclusive presumption of intention to throw off American nationality. Cf.
Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. Of course
such conduct may be highly persuasive evidence in the particular case of a
purpose to abandon citizenship.

21

To the extent that Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed.
297, and Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287,
applied principles contrary to those expressed in this opinion I believe they are
inconsistent with the Constitution and cannot be regarded as binding authority.

22

Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, concurring

in the result.

23

This case involves a native-born citizen of Japanese parentage who has been
declared to have lost his citizenship by virtue of 401(c) of the Nationality Act
of 1940, 54 Stat. 1137, 1169, for having served in the Japanese armed forces
while subject to the law of Japan making failure to serve a crime. That is the
case before the Court. The defined issue raised by this case is the only issue, in
my judgment, that the Court should decide.

24

Petitioner asserts that his service in the Japanese forces was performed under
duress. His claim of duress is based on the fact that he was inducted into the
Japanese armed forces pursuant to the compulsory conscription law of that
country,1 and that rumors of harsh punishment of draft evaders by the secret
police and the ruthlessness of the government in power made him afraid to take
any action to avoid service. The evidence to rebut this testimony, elicited on
cross-examination, was that he had failed to take certain actions to avoid
service; the only affirmative act urged in support of the voluntariness of his
entry into service is that he went to Japan when he was of draft-eligible age2

and remained there until inducted.

25

It is common ground that conduct will result in expatriation only if voluntarily

performed. See Mackenzie v. Hare, 239 U.S. 299, 311312, 36 S.Ct. 106, 108,
60 L.Ed. 297; cf. Acheson v. Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293,
96 L.Ed. 674; Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed.
674. Accordingly, where a person who has been declared expatriated contests
that declaration on grounds of duress, the evidence in support of this claim
must be sympathetically scrutinized. This is so both because of the extreme
gravity of being denationalized and because of the subtle, psychologic factors
that bear on duress.

26

The issue that is ultimately decisive in a litigation is one thing, the mode for
determining it quite another. The fact that conduct, in order to result in loss of
citizenship, must be voluntary behavior does not inherently define the
appropriate manner of its proof. The Government properly has a very heavy
burden in expatriation cases: it must establish that the citizen committed an 'act
of expatriation'i.e., engaged in conduct of which the consequence is loss of
citizenshipby clear, convincing and unequivocal evidence. Gonzales v.
Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806, adopting the standard of
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796,
and Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525.
This is incumbent on the Government although the evidence in cases such as
these may well be difficult to obtain. Much more difficult would it be for the
Government to establish the citizen's state of mind as it bears on his will,
purpose and choice of actionin short, 'voluntariness.' According to the
ordinarily controlling principles of evidence, this would suggest that the
individual, who is peculiarly equipped to clarify an ambiguity in the meaning
of outward events, should have the burden of proving what is state of mind was.
See Selma, Rome & Dalton R. Co. v. United States, 139 U.S. 560, 567568,
11 S.Ct. 638, 640, 35 L.Ed. 266. Moreover, any other evidence of his state of
mind, outside of his own mental disclosures, will often be found only abroad,
where the Government may have no facilities for conducting the necessary
investigation. The Court should hesitate long before imposing on the
Government, by a generalized, uncritical formula, a burden so heavy that the
will of Congress becomes incapable of sensible, rational, fair enforcement.

27

Where an individual engages in conduct by command of a penal statute of

another country to whose laws he is subject, the gravest doubt is cast on the
applicability of the normal assumptioneven in a prosecution for murder (see
Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302)that
what a person does, he does of his own free will. When a consequence as

drastic as denationalization may be the effect of such conduct, it is not

inappropriate that the Government should be charged with proving that the
citizen's conduct was a response, not to the command of the statute, but to his
own direction. The ready provability of the critical factexistence of an
applicable law, particularly a criminal law, commanding the act in question
provides protection against shifting this burden to the Government on the basis
of a frivolous assertion of the defense of duress. Accordingly, the Government
should, under the circumstances of this case, have the burden of proving by
clear, convincing and unequivocal evidence that the citizen voluntarily
performed an act causing expatriation.
28

Since the courts below were not guided by this formulation, the judgment
should not be allowed to stand. However, the Government should not be denied
a further opportunity to bring forward the necessary proof if it is able to do so.
Whether, in other classes of cases in which the defense of duress is asserted, the
Government should have the burden of proving its absence is a question the
Court need notand, therefore, should notreach. For that reason, I concur in
the result announced but cannot join the opinion of the Court.

29

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

30

The central question in this case is simply whether Nishikawa's service in the
Japanese Army can be said to be 'voluntary' when the record contains virtually
nothing more in the way of proof than that he went to Japan from this country
in 1939 and was inducted into the army pursuant to a conscription law of Japan
without any protest on his part.

31

Beyond establishing that he was drafted without protest, Nishikawa's testimony

should be disregarded, for the District Court expressly stated that it disbelieved
his explanations as to why he had not sought the aid of American authorities in
Japan or otherwise attempted to protest or prevent his induction, and the Court
of Appeals has affirmed. Particularly when credibility is in issue we should not
set ourselves against the factual determinations of the trial court, which had the
great advantage of hearing and observing Nishikawa on the witness stand.

32

The Courts of Appeals have divided on the question whether proof of

conscription, in the absence of anything more on either side, precludes a finding
that service in a foreign army was voluntary. The Second and Third Circuits
have held that it does. Augello v. Dulles, 220 F.2d 344; Lehmann v. Acheson,
206 F.2d 592; Perri v. Dulles, 206 F.2d 586. The District of Columbia Circuit
has ruled that '(d)ress cannot be inferred from the mere fact of conscription.'

Acheson v. Maenza, 92 U.S.App.D.C. 85, 90, 202 F.2d 453, 458; Alata v.
Dulles, 95 U.S.App.D.C. 182, 221, F.2d 52; but see Bruni v. Dulles, 98
U.S.App.D.C. 358, 235 F.2d 855.1
33

Moved by the consideration that a contrary rule would lead to the 'drastic'
consequence of denationalization, the Court holds that (1) the fact that
Nishikawa was conscripted into the Japanese Army precluded the District
Court from finding that his service was voluntary, in the absence of the
Government's showing something more than that he failed to take any steps to
prevent or protest his induction; and (2) the Government has the burden of
proving voluntariness in all denationalization cases once the issue of duress has
been 'injected' into the case. I too am not insensitive to the high value of
American citizenship, but find myself compelled to dissent because in my
opinion the majority's position can be squared neither with congressional intent
nor with proper and well-established rules governing the burden of proof on the
issue of duress.

I.
34

To permit conscription without more to establish duress unjustifiably limits, if

it does not largely nullify, the mandate of 401(c). By exempting from the
reach of the statute all those serving in foreign armies as to whom no more has
been shown than their conscription, the Court is attributing to Congress the
intention to permit many Americans who served in such armies to do so with
impunity. There is no solid basis for such a restrictive interpretation. By the
time the Nationality Act of 1940 was passed, conscription and not voluntary
enlistment had become the usual method of raising armies throughout the
world, and it can hardly be doubted that Congress was aware of this fact. In
view of this background it is farfetched to assume that Congress intended the
result reached by the Court, a result plainly inconsistent with the even-handed
administration of 401(c). Moreover, the very terms of the section, which refer
to both 'entering' and 'serving in' foreign armed forces, are at odds with such an
intention.

II.
35

Although the Court recognizes the general rule that consciously performed acts
are presumed voluntary, see 3 Wigmore, Evidence (3d ed.), 860; Fed.Rules
Civ.Proc., rule 8(c), 28 U.S.C.A., it in fact alters this rule in all
denationalization cases by placing the burden of proving voluntariness on the
Government, thus relieving citizen-claimants in such cases from the duty of
proving that their presumably voluntary acts were actually involuntary.2

36

One of the prime reasons for imposing the burden of proof on the party
claiming involuntariness is that the evidence normally lies in his possession.
This reason is strikingly applicable to cases of the kind before us, for evidence
that an individual involuntarily served in a foreign army is peculiarly within his
grasp, and rarely accessible to the Government. Nishikawa's case amply
illustrates the proposition. In the eight months that passed between his notice to
report for a physical examination and his actual induction Nishikawa could
have taken a variety of steps designed to prevent his conscription, any of which
would have been persuasive evidence of the involuntary character of his
service. For example, he could have sought to return to the United States, to
renounce his Japanese nationality, to advise Japanese officials that he was an
American citizen, to enlist the assistance of American Consular officials in
Japan, or to employ the aid of friends or relatives in the United States.3
Nishikawa admits that he did none of these things. But if he claimed that he
had, is it not apparent that he and not the Government is the logical party to
bring forward the pertinent evidence? In such circumstances it seems to me the
better course to require Nishikawa to prove his allegation of duress rather than
to impose on the Government the well-nigh impossible task of producing
evidence to refute such a claim.

37

For both of the reasons set forth above I think that the finding of the District
Court that Nishikawa served in the Japanese Army without duress should not be
disturbed.

38

In considering 401(c), we ought not to lose sight of the fact that it deals solely
with dual nationals, remitting them to the citizenship of the country which they
served in time of war. Unlike the majority, I do not believe that this
consequence is incommensurate with petitioner's conduct. It seems to me that
there is a large measure of justice in relegating Nishikawa solely to his Japanese
citizenship, for it is with the armed forces of Japan that he served for more than
four years during the heart of the late World War. Nishikawa's service included
participation in military action against the United States in the Philippines.
There is no suggestion that at any time during this period he ever performed
any act indicating disloyalty to Japan or loyalty to the United States.

39

The Court remands the case presumably to give the Government the
opportunity to show that Nishikawa's service with the Japanese Army was
voluntary. Surely this is but an empty gesture. The Government can hardly be
expected to adduce proof as to occurrences taking place in Japan more than 17
years ago which are now shrouded in obscurity beyond serious hope of
detection.

40

Nishikawa's constitutional contention that Congress lacked power to enact

401(c) is, in my view, foreclosed by Perez v. Brownell, 356 U.S. 44, 78 S.Ct.
568.

41

I would affirm the judgment of the Court of Appeals.

54 Stat. 1168, 1169. The present provision, Immigration and Nationality Act of
1952, 349(a)(3), 66 Stat. 267, 268, 8 U.S.C. 1481(a)(3), 8 U.S.C.A.
1481(a)(3), eliminates the necessity that the expatriate have or acquire the
nationality of the foreign state.

9 Cir., 235 F.2d 135.

See also, e.g., Acheson v. Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed.
674; Acheson v. Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674;
Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; 41 Op.Atty.Gen., No.
16.

Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525;
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.

Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Acheson v.
Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674, and Acheson v.
Kiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674, are not
dispositive of the issue. The holding in Gonzales went to the Government's
burden of proof in general without specific regard to voluntariness. Murata and
Okimura came here on appeal from a District Court's holding that various
subsections of 401 were unconstitutional. 99 F.Supp. 587, and 591. We
remanded for specific findings as to the circumstances attending the alleged
acts of expatriation and the reasonable inferences to be drawn therefrom.
In Bruni v. Dulles, 98 U.S.App.D.C. 358, 235 F.2d 855, the Court of Appeals
for the District of Columbia Circuit considered Gonzales as requiring the
Government to prove voluntariness by clear, convincing and unequivocal
evidence. Lehmann v. Acheson, 3 Cir., 206 F.2d 592, can also be read as
placing that burden on the Government. It is clear, at least, that the Third
Circuit, Lehmann v. Acheson, supra; Perri v. Dulles, 206 F.2d 586, as well as
the Second Circuit, Augello v. Dulles, 220 F.2d 344, regards conscription as
creating a presumption of involuntariness which the Government must rebut.
The Court of Appeals for the District of Columbia Circuit took a contrary view
prior to Bruni v. Dulles, supra. Alata v. Dulles, 95 U.S.App.D.C. 182, 221 F.2d

52; Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453.

6

See also United States v. Minker, 350 U.S. 179, 197, 76 S.Ct. 281, 291, 100
L.Ed. 185 (concurring opinion): 'When we deal with citizenship we tread on
sensitive ground.'

See Hearings before the House Committee on Immigration and Naturalization

on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess. 150, 201.

The proposal was advanced by the State Department spokesman, Mr. Flournoy,
who said:
'If a man is a citizen of the United States and Japan, both countries, as he would
be in all of these cases we have been discussing, and he is living in Japan, and
he reaches the military age, and they call him for service, it should not make
any difference from our point of view whether he makes a protest or not. It is
his duty to serve. He is in that country, and he is a citizen of that country, and if
we accept his plea of duress in these cases it practically nullifies the whole
thing, so we should put a proviso in reading somewhat as follows: That if an
American national also has the nationality of a foreign country and is residing
therein at a time when he reaches the age for liability of military service his
entry into the armed forces thereof shall be presumed to be voluntary. In other
words, a plea of duress would not make any difference. He is a citizen of that
country, and he is presumed to know that when the time comes he will have to
serve.' Id., at 150.
Spokesmen for the Labor and Justice Departments objected, stating that dual
nationals should have the opportunity to be heard on the question of duress. Id.,
at 150156; 169170; 200 203. At the time of the hearings 401(c) was not
limited to dual nationals. The Senate Committee inserted the limitation. See 86
Cong.Rec. 12817.
The Court of Appeals for the First Circuit has correctly concluded that little
significance attaches to the failure of the House Committee to accept a
suggestion that the word 'voluntarily' be inserted in subsections (b) through (g)
of 401. Hearings, supra, at 397398. 'It seems to us that the failure of the
committee to accept this amendment is of little significance in view of the
legislative history * * * indicating that such amendment was unnecessary and
superfluous.' Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860, 864,
note 4.

235 F.2d at page 140. But see id., at page 141.

10

Petitioner's evidence of conscription also dispelled the presumption created by

 402 of the Nationality Act of 1940, 54 Stat. 1169, 8 U.S.C.A. 1482, that a
national who remains six months or more within the country of which either he
or his parents have been nationals, has expatriated himself under 401(c) or
(d). Even if valid, 'Section 402 does not enlarge 401(c) or (d),' Kawakita v.
United States, 343 U.S. 717, 730, 72 S.Ct. 950, 959, 96 L.Ed. 1249, and, like
the analogous provision of 2 of the Act of March 2, 1907, 34 Stat. 1228, it
creates 'a presumption easy to preclude, and easy to overcome.' United States v.
Gay, 264 U.S. 353, 358, 44 S.Ct. 388, 389, 68 L.Ed. 728. The ambiguous terms
of 402 have since been superseded by 349(b) of the Immigration and
Nationality Act of 1952, 66 Stat. 268, 8 U.S.C. 1481(b), 8 U.S.C.A.
1481(b), which establishes a conclusive presumption of voluntariness on the
part of a dual national who performs an expatriating act if he had resided in the
state of his second nationality an aggregate of ten years or more immediately
prior thereto. Of course, the new statutory presumption is not in issue in this
case and there is no need to consider its validity.
1

According to a stipulation of the parties in the record, the Military Service Law
of Japan provided punishment of up to three years of penal servitude for
persons evading military service.

There does not seem to be any explicit basis in the record for the trial court's
finding (Finding of Fact No. III) that petitioner made the trip to Japan 'knowing
at that time that he was likely to be called for military service in the Japanese
Armed Forces.'

See also Hamamoto v. Acheson, D.C., 98 F.Supp. 904. Compare Acheson v.

Hiyokuro Okimura, 342 U.S. 899, 72 S.Ct. 293, 96 L.Ed. 674; Acheson v.
Hisao Murata, 342 U.S. 900, 72 S.Ct. 294, 96 L.Ed. 674, and the dissenting
opinion in Mandoli v. Acheson, 344 U.S. 133, 139, 73 S.Ct. 135, 138, 97 L.Ed.
146. As we read Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed.
806, cited in the majority opinion, that case related simply to the standard, and
not to the burden, of proof in denationalization cases.

The Court not only reaches a conclusion inconsistent with the usual rules
governing burden of proof, but does so in the face of 402 of the Nationality
Act, which provides in part:
'A national of the United States who was born in the United States * * * shall
be presumed to have expatriated himself under subsection (c) or (d) of section
401, when he shall remain for six months or longer within any foreign state of
which he or either of his parents shall have been a national according to the
laws of such foreign state * * * and such presumption shall exist until overcome
whether or not the individual has returned to the United States.' 54 Stat. 1137,

1169.
Nishikawa was in Japan for 10 months before he even received notice to report
for physical examination in the draft. He was inducted over 18 months after his
arrival in Japan. This Court held in Kawakita v. United States, 343 U.S. 717,
730, 72 S.Ct. 950, 959, 96 L.Ed. 1249: 'Section 402 does not enlarge 401(c)
or (d); it creates a rebuttable presumption of expatriation; and when it is shown
that the citizen did not act which brought him under 401(c) or (d), the
presumption is overcome.'
3

It is of course quite irrelevant that any steps taken by Nishikawa to forestall his
induction may have been in vain. Whether successful or not, they would
certainly have reflected his unwillingness to serve in the Army of Japan.